Pandemic proves Justice Thomas does have something to say

This week’s telephonic oral arguments at the U.S. Supreme Court are widely recognized as history-making — the first time the Court heard cases by phone, the first time the justices participated remotely and the first time arguments were streamed live.

But they also may have solved a mystery.

This puzzle, a favorite of Court-watchers for the better part of three decades, focuses on Clarence Thomas, the justice who almost never participates with his colleagues in their animated and sometimes aggressive questioning of lawyers from the bench. Thomas is the most silent justice in modern history. The reasons for his reticence have been the topic of endless conjecture and commentary, and even accusations that he “is simply not doing his job.”

This week’s arguments, however, suggest that something very different is going on: Justice Thomas finds the theatrics of contemporary oral argument inappropriate.

In the serene setting of argument by phone, a new system of careful turn-taking overseen by the Chief Justice replaced the rowdy free-for-all that sometimes characterizes the Court’s oral arguments. And in that more orderly, decorous format, Justice Thomas not only participated, but did so in ways that were thoughtful and helpful.

As scholars who have carefully studied Justice Thomas’s oral argument patterns, we were not surprised.

Our deep dive into the times when Thomas has spoken at oral argument strongly suggests that his refusal to ask questions has not been a result of either disinterest or inability. To the contrary, in some respects Thomas is a model questioner. Our study investigated every available question ever asked by Thomas as an appellate judge — a larger number than most observers have recognized — and reviewed each question for style, content, and context. The data confirm that when Thomas has posed questions, they have been thoughtful, respectful and useful to both his liberal and conservative colleagues.

Indeed, the picture that emerges from Thomas’s oral-argument career is of a justice who exemplifies some of the key attributes of judicial questioning. Thomas, for instance, is a fact stickler — a jurist who uses his queries to home in on the crucial factual details of the case and to highlight aspects of the record that might alter the analysis, impact the outcome, or both. He is also a statute parser — someone who focuses the parties and his colleagues on the specific language of statutes. Thomas is also a boundary tester, presenting insightful hypotheticals that help the Court work out the edges of the legal principles at stake. We saw this attribute in one of this week’s cases, which concerned whether Booking.com can be trademarked. Thomas asked the lawyer to imagine a slightly different case: 1-800-Booking. Would that change anything? Justices Ruth Bader Ginsburg and Stephen Breyer both followed-up on Thomas’s hypothetical.

This explanation for the much-observed phenomenon of a quiet Clarence Thomas — that the justice has questions that he thinks are valuable, but that he has been unwilling to engage in the showmanship, soliloquies, and signaling of the Court’s ordinary process — is further supported by other traits that appear in the data.

He is an attorney respecter; his interactions with counsel are characterized by almost excessive politeness — waiting to ask questions until after the lawyer has had a chance to speak and interjecting with apology even though interruption has now become par for the course at the Supreme Court. All the while, he is also a plain speaker and team player, constantly striving to ask crisp questions devoid of lengthy wind-ups, self-serving tangents or attempts at humor. He uses short questions to seek answers to his own concerns, but also tries to meet his colleagues’ interests.

This week’s telephone arguments have allowed Thomas to participate without butting in, to engage the dynamic of the full bench without drama and to pose short questions that get to the point without pushing anyone aside for airtime.

Whether this foray into telephonic questioning might embolden the Supreme Court’s most silent justice to continue to participate when the justices someday return to the courtroom remains to be seen. We hope it does. The Court’s experiment in an untraditional argument format is even more proof that yes, Clarence Thomas has something to say.

RonNell Andersen Jones is the Lee E. Teitelbaum Professor of Law at the S.J. Quinney College of Law at the University of Utah and an Affiliated Fellow at Yale Law School’s Information Society Project. Her scholarship focuses on legal issues affecting the press and the intersection between media and the courts.  Follow her on Twitter @randersenjones.

Aaron L. Nielson is professor at the J. Reuben Clark Law School at Brigham Young University.  His scholarship focuses on administrative law and federal courts. Follow him on Twitter @Aaron_L_Nielson.